While most of his peers stay out of the spotlight, super-agent Scott Boras has as usual been less than shy about sharing his opinion during the coronavirus pandemic. Boras spoke again today with SI.com’s Stephanie Apstein, espousing a firm position for players in their negotiations with Major League Baseball.
To be sure, Boras largely echoed union chief Tony Clark in terms of takeaway. Both are holding the line that they won’t accept a salary cut pegged to 2020 revenues, as the owners are set to propose. And they each maintain that a late-March MLB-MLBPA agreement determined that players should receive pro rata pay for any games played, regardless whether fans are in attendance.
So, why highlight his latest comments?
As I recently explained in covering the still-developing dispute between league and labor regarding that late-March deal, the issue boils down to some strange ambiguity that appears in the contract. While a “player compensation” section provides for straightforward salary reduction based upon the number of games played, the sides also agreed in another clause to “discuss in good faith the economic feasibility of playing games in the absence of spectators.”
In short, there’s a legal question of contract interpretation that bears heavily upon the strategic/practical question of how hard each side wants to push its position in negotiations and public posturing. Boras’s comments — always worthy of attention given his unmatched stable of clients — speak to both of those questions.
Here’s how the polarizing player rep stated things (emphasis mine):
“The players I represent are unified in that they reached an agreement and they sacrificed anywhere from 30 to 40% of their salaries so that the games could amicably continue. The owners represented during that negotiation that they could operate without fans in the ballpark. Based on that, we reached an agreement and there will not be a renegotiation of that agreement.”
Let’s discuss the matter of contract interpretation first. It remains a mystery as to why the MLB-MLBPA agreement did not speak clearly upon the question of how to handle a season without fans (or expressly reserve that matter in its entirety). Given the ambiguity, an arbitration panel or court considering that question might look not only to the agreement itself, but (among other things) to the statements made by the parties during negotiations — particularly to the extent they were reasonably relied upon by the other bargaining side.
Details remain elusive here, but this appears to be the first public allegation that the league side did or said something during the negotiations of that agreement that should impact how it’s interpreted. Boras says that the owners “represented” something about operating sans spectators, seemingly implying that the union side has something to buttress its stance on salary beyond the bare terms of the agreement itself. It’s impossible to assess given what we know and don’t know publicly, but it’s theoretically possible that a statement made during negotiations could substantially impact the outcome of a legal battle — if we ever see one.
If the union really feels it has a compelling legal case, then it could be emboldened to hold the line. Even if the late-March deal doesn’t establish an absolute right to pro rata salaries, evidence of the sort Boras suggests (assuming the player side can produce it) might well support a more favorable reading of the agreement. For example, it’s conceivable a court might read the notion of a “good faith” discussion of “economic feasibility” as requiring the league to turn over certain financial information to the players — particularly given that the league proposal is to tie salary to revenue — and perhaps also to make some sort of showing of infeasibility to open talks on lowered salaries.
Will the players actually hold the line on this point and demand that they receive full pro rata salary for whatever games are staged, whether or not fans are in the seats? Boras speaks to that as well. When he suggests unity among his clients, that means that he purports to speak for many of the game’s most-visible and best-compensated players. And he indicates that they’ll speak with one voice in declining to (as he presents it) renegotiate the agreement on the matter of compensation.
Even before you get to the question of which side you think is morally justified, if any, there’s still much we don’t know about what the parties of interest are really aiming to accomplish with the present jockeying. Is the league putting the squeeze on the union to get some added concessions? Perhaps Boras is being tasked with pit bull duties while Clark holds the line and the players put a more sympathetic face on the labor position. Could it really be that the sides are squaring up for a brutal and very public battle, all against a backdrop of a pandemic and long-building grievances? It’s not yet clear. But Boras’s comments do tell us that, at minimum, the player side (or at least his segment of it) wants MLB to believe that it will stand on an aggressive position on the matter of salary, come what may.